Archive for April, 2015

PSA: Facebook is NOT a WC Fraudster’s Friend

April 29th, 2015 No comments

Hello, dear readers!  Generally speaking, your humble blogger maintains his calm, cheerful, and respectful demeanor thanks to this blog and its readers: all the venting and ranting happens here, and the sarcasm and snark gets spent here instead.  To that effect, I try to bring you stories and cases and developments tied snugly into California matters but, on occasion, when it’s particularly relevant, I might relate a story or two from outside of California’s well-established borders.  Today is such a day!

The Washington State Department of Labor & Industries reports that Tony T. Perry Sr., of Port Orchard, Washington, has plead guilty to two counts of third-degree theft after he received almost $14.5k in wage loss payments while he competed in BMX bike races.  He described, on Facebook, injuring his ribs after a bike crash, but then claimed he injured his ribs in a fall caused by his allegedly industrially-injured knee.

Convict Perry was sentenced to 15 days of electronic home monitoring, with an additional 349 days in jail, suspended if he obeys all laws and repays the wage loss he received.

The investigators were clued in based on an anonymous tip, and conducted some surveillance, videotaping convict Perry engaged in at least two BMX races.  However, it looks like half of the work was done for the investigators by Perry himself, who brazenly documented his BMX racing on Facebook for the world to see.

So, dear readers, why do I bring this to your attention?  Why would an adjuster or an attorney or even an employer in California, where we are so busy keeping the working man from working, care about BMX racing and workers’ comp in Washington?  Well, you know we have bike paths in California, right?  We have Facebook too.

If you get a claim and you have the slightest doubt that the injured worker is a faker… take a look at Facebook.  If you get a claim and you’re pretty certain that the injured worker is honest… take a look at Facebook.  Take a look at LinkedIn too, and the Twitter and whatever else the kids are doing these days, because odds are, there’s a gem or two waiting for you to pick it up.  And, yes, this applies to California too.

So, dear readers, don’t be shy – a bit of time on social media could lead to an SIU referral.

Categories: Uncategorized Tags:

Hairstylist Found to be Employee for Comp Purposes

April 27th, 2015 No comments

Happy Monday, dear readers!

This morning, as your humble blogger stared admiringly into the mirror (“you’re more handsome.  No, YOU’RE more handsome!”) he realized it was time for a haircut.  But… who would cut this glorious hair?  Would it be barbershop employee… or an independent contractor?

In the recent writ denied case of Martinez v. Chelo’s Hair Fashion, the WCJ and WCAB both had found that applicant hairdresser was an employee rather than an independent contractor.  Of particular importance were the facts that the defendant-employer “exerted the right to control the manner and means in which applicant accomplished her job by setting the price, receiving 50% of the payments, deciding when to authorize discounts, paying all the bills, and not giving applicant a IRS Form 1099.  She also supplied instrumentalities in the form of shampoo, towels, and hair products.”

The alleged employer did not testify, but on cross-examination, the applicant testified to providing her own tools, which she must maintain and, if necessary, replace.  She also testified to having a cosmetology license, having spent some time working at another salon at the same time as Chelo’s, and to paying city and business taxes out of her earnings.  She also got to set her own departure time, although she had to open the shop in the mornings.

The WCJ found there to be an employment relationship, and the WCAB affirmed.  Initially, the WCAB declined to address the factors outlined in Borello, on the grounds that defendant did not offer any evidence to rebut the presumption of employment under Labor Code section 3351.  But, even under the Borello the WCAB would find employment on the grounds discussed above.

Interestingly enough, your humble blogger recalls a similar matter – that of Aparicio v. WCAB, in which the WCAB found a hairstylist to be an independent contractor and the Court of Appeal denied review.  There, applicant kept a portion of the money paid to her by her clients in lieu of paying rent or earning hourly wages.  She was provided with a place to work and some supplies.  In Aparicio, applicant did not have a cosmetology license, but Ms. Martinez did.

The Aparicio and Martinez arrangements seem pretty similar, but the commissioners provided very different results.  What does a salon need to do to ensure that its hairstylists are independent contractors and not employees?

Categories: Uncategorized Tags:

“Injured” Worker Caught Skydiving; Charged with Fraud

April 22nd, 2015 No comments

Happy Wednesday, dear readers!   When I was a boy, my great-uncle Pavel told me the story of how he jumped from a Russian Bomber during World War II after it had been struck by Messerschmitt fire.  His let shoulder and elbow dangled uselessly from his body, but he was able to pull and control the parachute to land safely into a cottage full of lonely and beautiful young women who were very impressed with the brave man in a handsome uniform.

Later, I found out my great-uncle had an excellent imagination, but a poor memory, and actually spent World War II as a cook… and he’d never been to the great Motherland; he never jumped out of any airplanes; and, based on his cooking, it looks like he was busy fighting his own war against culinary convention.

When I discovered this – I was heartbroken… but it wasn’t really fraud, right? Just a tall tale to match a tall drink.

Then I read the story of a gentleman from Santa Clara County being charged with workers’ compensation fraud.  Apparently, this gentleman claimed to have sustained an injury while at work as a concrete cutter, and is charged with defrauding Arch Insurance Company of $52,000.  He claimed the injury caused him immense pain and rendered him unable to drive.

Investigators obtained footage of him driving without any difficulties… and even observed him engaged in skydiving, guiding his parachute down to safe landings!

The Santa Clara District Attorney picked up the case, and has filed felony charges against the gentleman.

Your humble blogger commends the Santa Clara DA for prosecuting this case, and the insurance company for investing the time and resources in investigating the claim.  Workers’ Compensation Fraud happens far too often in California, and its discovery is far too rare- its prosecution rarer still.

As for Pavel, each time he tells the story, his injuries get worse and his escape more daring – both of which can be forgiven so long as he doesn’t seek any workers’ comp benefits for the tall tale.

Categories: Uncategorized Tags:

WCAB Doesn’t Inhale: No WC Reimbursement for Marijuna (Yet)

April 17th, 2015 No comments

Hellooooo Narcs!  Clear the smoke, dear readers – the WCAB has again declined to order a defendant to reimburse an applicant for the cost of medicinal marijuana.

lebowski opinion

In the recent panel decision of Cockrell v. Farmers Insurance, the WCJ found that applicant was entitled to reimbursement for medical marijuana.  The case was previously before the WCAB back in 2012, when the parties were ordered to consider Health and Safety Code section 11362.785(d), which holds that “[n]othing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.”

The issue was remanded and came up to the WCAB once more.  In a recently issued panel decision, the WCAB instructed the parties to revisit the issue on the trial level once more, to determine whether workers’ compensation insurance constitutes a “health insurance provider” to determine if section 11362.785(d) directly applies to workers’ compensation benefits.

The panel opinions seemed to suggest, at least to your humble blogger’s reading, that the commissioners were initially inclined to find that a workers’ comp insurer does NOT have to provide reimbursement for marijuana.  However, if the defendant were to argue that an order to reimburse applicant for his marijuana purchases would violate federal law, the commissioners need only point to the Mota v. Allgreen Landscape case, where a workers’ compensation defendant was forced to hire an applicant’s wife, who could not produce proof of the legal right to work in the United States, to provide in-home care.

This is an important issue to address, but perhaps the WCAB is not the place to address it.  More states are moving to recognize medicinal and even recreational use of Marijuana, and, depending on the administration, prosecution of Marijuana use might decline here and there.  California itself, might gradually move to more lax Marijuana laws.

But, for the time being, it is a question that needs answers – must an employer provide reimbursement, if not physically deliver, the marijuana to applicant?

Of course, if it does prove too expensive, perhaps we should ask around if anyone “knows a guy.”

Categories: Uncategorized Tags:

WCAB: AME Reports Must Go to IMR

April 15th, 2015 No comments

Hello, dear readers!

Is submitting an AME report, or a PQME report, to IMR required?  In the case of Garibay-Jimenez v. Santa Barbara Medical Foundation Clinic, the panel of WCAB commissioners answered: “Yes.”

Applicant sought to appeal a timely UR denial by submitting the issue to IMR.  Both parties had in their possession AME reports, but neither party sent them to IMR before the decision was made.  The WCAB, reversing the WCJ, ruled that Regulation 9792.10.5 and Labor Code section 4610.5(l)(1) require the defendant to provide AME reports to IMR for consideration.   “The error cited by applicant was the failure of both the UR and IMR physicians to review the reports of the AMEs who recommended the left ulnar nerve decompression and post-operative physical therapy.”

The WCAB held that relevant regulations impose a duty upon the employer (and its insurer) to provide relevant records to IMR, and when the defendant fails to do this, any adverse determination by IMR is subject to an appeal and, possibly, an IMR re-review at the employer’s expense.

Now, your humble blogger may not know the first thing about workers compensation, or about fancy cars, or big city doings, or even the new-fangled things the kids use like the twitter and the Instagram… but I do know what the word relevant means.  And, from what it looks like, an AME report (or reports)… well, relevant it’s not.

What opinions could an AME offer on the issue of medical necessity or the need for a particular course of treatment?  After all, compensability of the injury is not in question – the injury is already admitted.  Nor is the issue in dispute a total medical discharge.  The AMEs can’t offer much by way of necessity of medical treatment, after all, because Labor Code section 4062.2 specifically prescribes submitting to AMEs the issues reserved for UR and IMR.

So… what could the AME offer by way of “relevant” information? IMR can competently summarize records, and IMR is not concerned with matters of work restrictions, permanent disability, apportionment, etc.  The only relevant question is whether the treatment requested by the primary treating physician is medically necessary… and the good folks and UR and IMR are supposed to tackle that one themselves.

Now, you might say “Hey, Greg, the AMEs are the ones that recommended the treatment, so their opinion IS relevant.”  Well, if your humble blogger were sitting next to you when you said that, you would get the frowning of a life-time.  California Code of Regulations section 9785, tells us that the primary treating physician is “the physician who is primarily responsible for managing the care of an employee, and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter.”  Furthermore, the same section tells us that the employee can have only one primary treating physician at a time.  So, while the AMEs can recommend treatment, the PTP is the one who is supposed review the recommendation and either concur or reject it.  And, whatever the PTP decides to do, his or her own report is the relevant one, not the original AME report.

So what is so “relevant” about AME reports?  Well, it looks like the WCAB considers the reports relevant, so defendants would be wise to provide AME and QME reports to IMR, even if the applicant has it in his or her possession.   What’s the downside to sending everything, out of fear of leaving out something that might be later considered “relevant”?

We get to suffer through accusations of flooding the IMR reviewer with irrelevant information in the hopes of hiding a needle in a haystack, as was the case when IMR was just rolling out.

Now, don’t get me wrong – the use of AMEs is a great thing.  It speeds up litigation process, it contains costs on panel disputes (which are now expected in almost every single case), and it provides an incentive for doctors to be reasonable and fair and to establish trust from both the defense and the applicant communities.  And, it doesn’t seem too far-fetched for the parties to trust an AME on the issue of medical treatment necessity.  But, if we’re not submitting the issue of medical treatment to the AME, and we are going the UR and IMR route, your humble blogger submits that medical-legal reports are not relevant.

Categories: Uncategorized Tags:

Proposed Legislation Would Make Runners, Cappers, and Steerers Liable Too!

April 8th, 2015 No comments

Hello, dear readers!

It’s Wednesday, and your humble blogger brings you something interesting from California’s Legislature.

Assembly Member Tom Daly, of California’s 69th Assembly District, has introduced Assembly Bill 686, which would essentially grant a hunting permit to any “interested party” for runners, cappers, or steerers in the workers’ compensation arena.

For those that aren’t familiar with the concept, most states, California included, frown upon the practice of doctors and lawyers paying people to bring in potential clients. This includes ambulance chasers…

However, unlike the depiction above, many attorneys are far too busy to do the running, capping, and steering themselves – so they hire other folks to do the leg-work for them.

Assembly Bill 686 would extend the current prohibition on employing runners, cappers, and steerers, to also prohibit acting as runners, cappers, and steerers.  So, when you see a less-than-respectable fellow walking around, from hospital room to hospital room, promising millions for injuries sustained at work, this bill, if enacted into law, would enable an interested party to sue the runners themselves, rather than just the puppeteer.

Presumably, the potential for disgorgement and civil liability would motivate a runner to roll over on said puppeteer, leading to deeper pockets to make the victim-insurer and employer whole.  Presumably, this would also make those attorneys (and doctors) who employ runners, cappers, and steerers, wary of retaining them for fear of being betrayed.

Here’s hoping.

But, what’s the big deal, right?  If a zealous and devoted attorney wants to help those injured at work, and is willing to undertake the expense of making knowledge of the existence of his or her services available to the injured workers, what’s so bad about that?

Here’s what’s bad about that: “Why are you going back to work?  We can get you a big stack of money, some great drugs, and you get to go back to work like nothing ever happened.” “Oh, well, in that case, sure, sign me up!”

Mr. Capper gets his $500 (the going rate, your humble blogger is informed by a source here and there), and the attorney (or doctor) gets a fresh client/patient to run with.

In other words, whereas an injury could have resulted in conservative care and return to work, suddenly, an injured worker’s expectations are falsely manipulated (increased to allow a pay-day for all those that would benefit from an injured worker’s plight) and the insurer and employer are forced to bear the costs of unnecessary litigation.

Furthermore, the legitimate, honest, and good-faith applicants’ attorneys and treating physicians have to compete with the guys for business. They have to compete with practitioners who employer runners, cappers, and steerers for the reputation and nature of the business.

It’s a practice that harms the process and all those involved with it, and I would welcome this, among other, efforts to stop it.

Here’s hoping that this piece of legislation flies from the pages of your humble blogger’s blog to the Governor’s desk in a hurry.

Categories: Uncategorized Tags:

IMR: No In-Home Care! PTP: We Asked for Handrails on the Bathtub…

April 6th, 2015 No comments

Hello, dear readers!

Your humble blogger greets you with wishes of a Happy Easter and a Happy Passover!  Some of you, no doubt, are enjoying your Cadbury eggs, laughing maniacally as you observe your fellows eating unleavened bread.  In the meantime, your humble blogger, as he brushes Matzo crumbs off his desk and eagerly awaits the post-Easter chocolate sales, has a bit of a blog post for you.

In the matter of Takafua v. FP International, applicant’s case-in-chief had already been resolved with the future medical care rights left open.  The primary treating physician submitted a request for an assessment of assistive devices, reasoning that the injured worker might need devices for safety reasons at home, and possibly a new vehicle with a new lift.  This followed applicant’s fall in the bathtub, resulting in a head injury and a trip to the emergency room, as well as an ankle sprain.

The request was timely denied by UR.  Then it gets interesting.

IMR issued a decision upholding UR’s denial, reasoning that services at home, such as shopping, cleaning, and laundry, and durable medical equipment, are not necessary.  But the request was for an assessment of applicant’s needs for assistive devices.

The matter proceeded before the WCJ, who ordered IMR to provide a re-review with another reviewer, pursuant to Labor Code section 4610.6(h), under subsection 5: “[t]he determination was the result of a plainly erroneous express or implied finding of fact…”

Now, hypothetically, if IMR had come back and said that it is not reasonable to have assistive devices, perhaps the result should have been different.  After all, if IMR has already determined that whatever devices an assessment would recommend would not be medically necessary, the assessment becomes somewhat of a moot point.  But, in this case, IMR is answering a question no one asked.

Defendant filed for reconsideration and the WCJ’s report was adopted and incorporated, denying the petition.  The matter was denied review.

Now, what result? The original request was made in April of 2014.  That means that, as of January, 2015, the matter could proceed to IMR for a second review.  In other words, a gentleman with an admitted injury to the bilateral knees, already having suffered a fall, a head injury, and a sprained ankle as a result of falling in the tub, will likely wait one year before there is an assessment of what assistive devices he would need in his home and car.

On top of that, defendant is out the litigation costs.  Furthermore, aside from just the human considerations for the potential hurt to applicant – what about the increased medical bills that would likely be tied or claimed to this injury, all on defendant’s dime?

Your humble blogger isn’t privy to all the facts, of course, not having been a party to this case, but from the looks of the WCJ’s report and the panel opinion, it may have been economically prudent, both in the short term and the long term, to just authorize the assessment.  After the assessment came back, it probably would be prudent to authorize the assistive devices too, at least in a financially feasible way.

Why the short term? Because you can probably prevent more injuries, and prevent the need for even MORE medical treatment, by putting handrails in the bathtub and anti-slip mats on the floor.  Why the long term?

Because, in the long term, we in the defense community have a reason to be the reasonable side – not the side making outrageous claims; not the side that’s calloused and foolhardy and reckless with the health of injured workers, like some doctors and attorneys that herd somewhat-injured workers into serious surgeries to be maimed.

We want the credibility of denying medical treatment for a good reason – such as a spinal surgery in a particular applicant’s case will likely maim him or that general anesthetic, in another case, will likely kill the patient because of his morbid obesity and the extra difficulty in properly calculating the right amount of sedative.

Or, the more common and less dramatic scenario, that because the last 8 chiropractic sessions have proved completely ineffective, further chiropractic treatment is inappropriate at this time, or that if applicant can take a 1 hour bus ride, he’s not entitled to a limo instead.

Gear up, dear readers – it’s going to be a bumpy week!

Categories: Uncategorized Tags:

California Supreme Court: No Dubon Review

April 3rd, 2015 No comments

Hello, dear readers!

So here we are – another week gone.  And, after being tricked intro drinking coffee with salt instead of sugar, after having your desk covered in post-it notes, and after being misled into buying workers’ compensation insurance for your pet dog, you’re finally ready for some good news.

Well, leave it to your humble blogger to bring you some!

So, from the looks of it, the California Supreme Court won’t be chiming in on Dubon, and the decision looks like it’s going to stand, at least for now.

As you will recall, Dubon, that en banc WCAB opinion which ultimately held that, unless UR is untimely, it HAS to go to IMR, is not the only case that challenges the absolute exclusivity of the UR-IMR procedure.  The case of Stevens v. WCAB is likewise working its way to the Court of Appeals’ decision desk, with Mr. Stevens seeking to establish that Workers’ Compensation Judges should have jurisdiction over the validity of UR and IMR.

Now, while we in the defense community might all dance in the streets at the idea that, for a bit longer, at least, there’s no adverse decision on the question of the validity of IMR, there’s a bit of frustration everywhere else.

Treating physicians are certainly upset that they can’t get authorization for all the treatment they would like to perform (and bill for).  And, of course, applicant attorneys are upset that they can’t get more and more treatment for their clients, whether for the sake of the treatment itself or just for the ability to drive up costs for defendants as a means of leveraging higher settlement amounts.

Now, as much as your humble blogger is a cold, heartless defense attorney, I can’t help but agree with some of the sentiments of the anti-IMR crowd.  It’s horrible when UR denies home modification on the basis that the UR reviewer would not have authorized a wheelchair in the first place.  It’s horrible when UR denies an MRI for the back because the knee has not been admitted as an injury (that’s not a typo dear readers, and no, I’m not making these ones up).  It’s horrible when UR refuses to authorize Scotch injections for a spiritually and morally crushed but physically health workers’ comp blogger (that one might actually be made up).

But, you know what else is (arguably equally) horrible?  The abuse employers and insurers receive in California’s workers’ compensation system.  Employers are forced to provide sleep number beds.  Employers are forced to provide treatment for non-industrial conditions just to make industrial treatment feasible.  Neither temporary disability nor medical treatment benefits are subject to apportionment.  We’ve seen insurers with just a few days of coverage be stuck with the entirety of a career-spanning CT.

At the moment, it looks like the only two possible scenarios are those in which one of the parties is left very unhappy – either employers are forced to provide treatment of questionable reasonableness and necessity, or employees are deprived of reasonable and necessary treatment on questionable grounds.  The legislature is clearly not content to leave decisions in the hands of the Administrative Law folks, and the Administrative Law folks aren’t happy leaving the decision in the hands where the legislature placed it.

We need another solution, and quick.  Your humble blogger’s ideas have been roundly rejected, including (1) have all jobs done by robots that are specifically programmed not to rebel against humanity; (2) tell all employees to stop getting injured at work; and (3) wrap all employees in thick layers of bubble-wrap prior to sending them out to do the day’s tasks.

Are you guys sure I can do welding in this?

Are you guys sure I can do welding in this?

What are your ideas?

Categories: Uncategorized Tags:

BREAKING: 9th Circuit Rules on Animal Rights to Workers’ Compensation Case

April 1st, 2015 No comments

As my dear readers will recall, two years ago, a curious lawsuit was filed in San Francisco by the “Society for Animal Rights in the Workplace” (SARW) on behalf of animals, both agricultural and as domestic service animals, throughout California.

The lawsuit alleged, to the amusement and disbelief of many side-line observers, that animals performing work, such as guide dogs, tour-guide horses, and cows, are entitled to workers’ compensation benefits.

“Our furry friends deserve our protection” Jack Vangerf, speaker for SARW said on the courthouse steps of the 9th circuit, yesterday.  “We must speak for those who cannot speak for themselves.  Cows say ‘moo’ horses say ‘neigh’ and we say ‘no more!’”   The defendant in this bizarre lawsuit was the State of California and the Department of Insurance, which had, heretofore, been unwilling to enforce workers’ compensation laws for the protection of animals.

I Can Has Obedience School Voucher?

I Can Has Obedience School Voucher?

Judge Robert Arten, of the San Francisco District Federal Court dismissed the case.  In his opinion, he acknowledged that animals can be loyal, productive, useful, and at times, delicious, but that does not make them “workers” as contemplated by California’s constitution or the Labor Code.

On appeal, however, the 9th Circuit reversed, ruling instead that California cannot discriminate between the working man and the working animal. Writing for the majority, recently appointed Judge Koztka of the 9th Circuit held “Neither California nor common sense distinguish between the man working in the field and the animals working at his side.  They are both entitled to all the benefits of the Workers’ Compensation Act.”  He continued: “if an agricultural or domestic employer wants to arrange an ‘independent contractor’ term with his service animal, then, obviously, that arrangement would fall outside of the Workers’ Compensation laws, but unless that is properly established, the plaintiffs have a case.”

Your humble blogger reached out to one of the real parties in interest in this case, and she had this to say:

Powerful words.

California’s Attorney General, Kamala Harris, responded to the news by saying “Was that a real thing? How did you get in here? Security!”  Meanwhile, the California Chamber of Commerce has urged all agricultural entities, owners of horse-drawn buggies, as well as any persons relying on service animals to quickly purchase workers’ compensation insurance in the event the 9th Circuit’s ruling holds.

Your humble blogger however, urges calm and wishes his beloved readers a Happy April 1st, 2015.

Categories: Uncategorized Tags: